Vining v. Lippincott

• Decision Date: 07 February 1916
• Docket Number: No. 11842.,11842.
• Parties: VINING v. LIPPINCOTT.
• Court: Missouri Court of Appeals

182 S.W. 758

VINING v. LIPPINCOTT.

No. 11842.

Kansas City Court of Appeals. Missouri.

February 7, 1916.

Appeal from Circuit Court, Jackson County; D. E. Bird, Judge.

Action by H. B. Vining against A. H. Lippincott, begun in justice court, and appealed to circuit court. From a judgment for plaintiff, defendant appeals. Affirmed.

Ellis, Cook & Barnett and Roy K. Dietrich, all of Kansas City, for appellant. W. B. Dickinson, of Kansas City, for respondent.

ELLISON, P. J.

Plaintiff and defendant entered into a written contract whereby plaintiff was authorized to sell for defendant a certain described soda fountain manufactured by defendant in Pennsylvania and known as "Leader," for the price of $1,600, in certain payments, viz., $80 should accompany the order, $240 to be paid April 1, 1912, upon tender of fountain, and balance in installment notes. Plaintiff's commission was to be 15 per cent., amounting to $240, if the sale was in compliance with defendant's rules upon settlement by the purchaser made in compliance with the order to be taken by plaintiff. Plaintiff on November 9, 1911, procured an order and sold a fountain to an Electric Park Company in Kansas, to be shipped from Philadelphia April 15, 1912.

But the Park Company did not accompany the order with $80 cash as agreed. Nevertheless defendant accepted the order and made the fountain, undertaking to collect the $80 itself, and as late as the 3d of September 1912, recognized that it was yet in force and threatened suit. Defendant claims the contract was terminated, and that in the following April it sold the fountain to the Park Company. But that fountain was manufactured under the sale made by plaintiff under an order which defendant recognized after it knew of noncompliance with its terms by the Park Company.

It seems that failure to get the park in proper condition caused the failure on part of that company to comply with the terms of purchase, but it wanted the fountain when it got in position to put it in use, and plaintiff wrote defendant in February, 1913, being near ten months after the fountain was to have been delivered, that he thought he could get the company to take it, and in a few weeks thereafter the Park Company did take it. The effect of this latter transaction between defendant and the Park Company is the principal point of dispute between the parties. Defendant insists that plaintiff failed, and that its negotiation with the Park Company "was a new transaction." We cannot agree to...